Northern District Strikes Bias Expert

Originally published by Thomas J. Crane.

The Americans with Disabilities Act was passed in 1992 during the administration of the first George H.W. Bush. It was later amended in 2009. Yet, many persons with disabilities still face obstacles to employment. In EEOC v. S&B Industries, Inc., No. 15-CV-641, 2017 LEXIS 9259 (N.D. Tex. 2017), two women with hearing impairment applied for a job with S&B Industries. S&B repairs cell phones. There was a group interview of several applicants. Katelyn Baker and Tia Rice communicate only with benefit of an ASL interpreter or by writing notes. The employer did not hire either woman. The parties agreed the two women were not qualified for the technician job. They lacked experience and training. But, contended the EEOC, there were several other jobs the two women could have performed. The women were referred by a staffing agency, which was aware of their impairment. Yet, no one provided them an ASL interpreter for the group interview.

The EEOC sought to provide an expert at trial, who would describe the ASL language, and discuss the barriers faced by hearing impaired persons when seeking employment. The employer moved to exclude testimony from the expert, arguing she would simply present stereotypes about society. It argued that none of these stereotypes have been attributed to S&B. The court noted that an expert can serve as a “teaching” expert if she can distill complicated subject matter into language a jury can understand. The expert had planned to testify that “audism and phonocentric” views may have prevented accommodations from being offered by  S&B. The court rejected that testimony, saying there was no evidence that such views may be attributed to S&B. There was no evidence, circumstantial or direct, that any employee of S&B held such views.

The court also rejected the expert’s planned testimony regarding how many people in the U.S. suffer from hearing impairment and regarding how few are employed. The court opined that such evidence would not help show that discriminatory motive animated the decision not to hire Ms. Baker and Ms. Rice. Such evidence might help show why the two plaintiffs could not mitigate their damages. But, that was not the topic for which the expert was identified.

Experts are not used often in employment cases. The problem, as shown here, is tying such polemics to actual alleged transgressors. Just because many people hold bias against deaf persons do snot mean these particular managers held those views.

It is rare for persons with severe disabilities to come forward and file a complaint. The parties entered into a Consent Decree soon after the court’s ruling on the motion to exclude and regarding summary judgment. The court denied the motion for summary judgment in part. The EEOC then settled the case for $110,000 and with the requirement that the employer conduct training on accommodations in the workplace. See EEOC press release here. See the decision here.

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